Florida Comparative Negligence in a Nutshell

I’ve seen a lot of social posts lately about rear-end and other kinds of collisions. Many of them are, well, wrong. Most people think whoever gets a ticket is at-fault, and some think a person who rear-ends another car is always is at-fault. Yet that’s not how the law works in Florida.

Here’s the law in Florida regarding liability in crashes: Florida is a “pure comparative negligence state.” There are states that use other standards of law, so this post only applies to Florida. I’m not licensed to practice law in other states.

Drivers in Florida can collect whatever percentage of damages for which they are not at fault. Crashes are rarely 100% one party’s fault or the other. Drivers can usually avoid crashes by driving slower, braking sooner, reacting quicker, following further away, or keeping a better look-out.That sometimes leaves a lot of room to argue comparative negligence with a claims adjuster or to a jury. That’s true even in rear-end collisions. There is only a rebuttable presumption of negligence in even rear-end collisions, yet people usually believe the rear-driver is always at-fault, but that’s not true. Not using one’s turn signal, making a sudden, unexpected stop, not having working brake lights are all negligent acts. That means you might not be 100% at-fault even if you rear-end another car. I’ve had cases in which drivers stopped for no reason whatsoever on I-4 in a 65 MPH speed zone. I had another case in which a driver left his car in the middle of Orange Blossom Trail in Orlando with no lights on.
A question I always ask adjusters when they trying to blame my client for a crash is, “What’s 1% of someone’s life worth?” What I mean by that is that an insurance company has low bodily injury liability limits, then even if my client is the majority at-fault, my client’s injuries might warrant a policy limits tender despite my client’s comparative negligence.

Big injuries beat low policy limits almost every day of the week. Herniations? Broken bones? Amputations or death? It’s usually no contest.

So how does comparative negligence work? The easiest explanation is to pretend Driver A and Driver B both have $1 of damages. Driver A is 75% at fault and Driver B is 25% at fault. Here’s how that breaks down:

1. Driver A, who is 75% at-fault, can collect $.25 of his $1 in damages.
2. Driver B, who is only 25% at-fault, can collect $.75 of her $1 in damages.
That applies to bodily injury and/or property damage.
Traffic tickets and police reports don’t matter when it comes to determining liability. Cops do not determine liability in a Florida. They only seek probable cause that shows someone violated a state statute. That’s it. Judges don’t always agree with cops either. That has nothing to do with comparative fault. Tickets and police reports are hearsay and are not admissible evidence in court. Furthermore, a police officer can only testify to what he perceived with his own senses. I can recall only a few cases in which an officer witnessed a crash, and often, cops make horrible witnesses. The reasons why are best left for another post.
Claims adjusters determine liability in cases in which lawsuits haven’t been filed. Juries determine liability in lawsuits.
So how does a claims adjuster or jury determine liability? They look at pictures of the roadway, traffic light sequences, traffics signs, points of impact, crush damages, and other physical evidence as well as listen to witness testimony.There might even be eyewitnesses that saw things helpful to my client’s case.
That’s a very simple overview of liability in a Florida.